The legal maze facing asylum seekers at the Southern border has become even more convoluted. A recent federal court order that suspended the Justice Department regulation making illegal crossers ineligible for asylum opens up additional Catch-22 conundrums.

The Justice Department issued an interim final rule (rule) which makes aliens who cross the Mexican border illegally ineligible for asylum. It is supposed to implement President Donald Trump's proclamation that suspends the entry of the illegal crossers, which he issued pursuant to his authority under section 212(f) of the Immigration and Nationality Act (INA).

The Supreme Court upheld Trump’s use of section 212(f) as authority for his Travel Ban Order, holding that section 212(f) “exudes deference to the President in every clause. It entrusts to the President the decisions whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions.”

Immigration advocacy organizations filed a motion asking a U.S. District Court in Northern California to stop the rule from going into effect.

The parties agreed that the proclamation did not render any alien ineligible for asylum. District Judge Jon S. Tigar found, therefore, that the case did not present the question of whether section 212(f) authorizes the president to directly limit asylum eligibility, so he did not include the proclamation in his decision.

This was a mistake. Although the proclamation doesn’t say that it is making the illegal crossers ineligible for asylum, it prevents them from getting relief of any kind that would allow them to enter the United States.

Judge Tigar granted a temporary restraining order which prohibits any action to continue the implementation of the rule and requires a return to the pre-rule practices for processing asylum applications.

My former congressional colleague Andrew Arthur has arguedpersuasively that the restraining order should not have been issued. He may be right, but Judge Tigar’s decision isn’t likely to be reversed until the case gets to the Supreme Court.

Arthur also points out that according to information in Wikipedia, Judge Tigard does not have much experience with immigration law.
This would explain why he issued an order enjoining a regulation that protected illegal crossers from serious, unintended consequences.

Published originally on The Hill.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.